Hector Yovanny Herrera Hernandez v. U.S. Atty. Gen

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-11474 ELEVENTH CIRCUIT
FEBRUARY 7, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK

BIA Nos. A97-199-435 & A95-199-436

HECTOR YOVANNY HERRERA HERNANDEZ,
GRACE CONTRERAS LOPEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the
Board of Immigration Appeals
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(February 7, 2007)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Hector Yovanny Herrera Hernandez (“Herrera”) and his wife, Grace

Contreras Lopez (“Lopez”), petition for review of the Board of Immigration
Appeals’ (“BIA”) adoption of the Immigration Judge’s (“IJ”) order of removal and

denial of their application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) and the United Nations Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (the “CAT”).1 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). We

find no reversible error; we deny the petition.

Herrera, a native and citizen of Colombia, entered the United States in April

1999 and was authorized to remain until April 2000. Lopez, also a Colombian

native and citizen, was admitted to the U.S. in May 2000 and was authorized to

remain until November 2000. Herrera filed an application for asylum and

withholding of removal under the INA and the CAT in May 2003, contending that

he was persecuted on account of his political opinion and membership in a

particular social group. In January 2003, the Department of Homeland Security

(“DHS”) issued Herrera and Lopez with Notices to Appear, charging them with

removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as

nonimmigrants who remained in the U.S. for a time longer than permitted.

1
The parties’ cases were consolidated for hearing and decision before the IJ, although the BIA
issued separate decisions.

2
At the removal hearing before the IJ, Herrera conceded removability and

renewed his application for asylum and withholding of removal. He argued that,

as a former member of the Colombian National Army, members of the

Revolutionary Armed Forces of Colombia (“FARC”)--several of which were

childhood friends--approached him at least three times from 1986 to 1999,

requesting that he join their cause and assist them in acquiring military

information and materials such as uniforms, gun refills, and ammunition. Upon

his refusal to cooperate, FARC members threatened him and his family. He

testified that he had considered the past threats to be serious and feared bodily

harm, enough so that after one encounter in 1995, he moved from Bogota to the

city of Manizales to escape the FARC. During the eight to ten months he lived

there, he had no encounters with the FARC. He returned to Bogota in 1996 to find

more stable work. He had no further contact with the FARC until February 1999,

when FARC members approached him insisting that he work with them, detained

him overnight, beat him, and stole money from him. He and his wife left

Colombia two months later.

The IJ denied petitioners’ applications for asylum and withholding of

removal. As an initial matter, the IJ concluded that the asylum application was

time-barred under INA § 208(a)(2), 8 U.S. C. § 1158(a)(2) (requiring application

3
to be filed within one year of arrival in the U.S.), and that Herrera’s testimony

did not establish changed conditions or extraordinary circumstances to excuse

the delay. In addition, the IJ found that, even were the application considered on

the merits, Herrera failed to establish a well-founded fear of persecution and thus

could not meet the higher standard required for withholding. In reaching this

conclusion, the IJ entered an unfavorable credibility rating, noting several

specific inconsistencies in Herrera’s testimony and application. The IJ also

found that the evidence showed that Herrera could avoid persecution by

relocating within Colombia.

On appeal, the BIA affirmed and adopted the IJ’s decision. The BIA

specifically agreed that Herrera’s failure to file a timely application was not

excused under the extraordinary circumstances exception. The BIA also

determined that Herrera’s experiences did not rise to the level of past persecution

or torture, and it was therefore unnecessary to address specifically the issue of

credibility. And, the BIA concluded that Herrera failed to qualify for

withholding of removal under the INA or the CAT, “as no facts were presented

to show that it is more likely than not that he will be persecuted or tortured in

Colombia upon return.”

4
On appeal, Herrera argues that the IJ and BIA erred in denying his claims

for asylum and withholding of removal. He contends that his repeated refusals

to cooperate with the FARC established past persecution or a well-founded fear

of future persecution on account of his membership in a particular social group:

former members of the Colombian Army. He also argues that the IJ

overemphasized facts that were properly considered in terms of the weight of the

evidence, rather than in terms of Herrera’s credibility.

We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s decision. Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th

Cir. 2005). Here, although the BIA stated that it adopted and affirmed the BIA’s

decision, it listed specific grounds for affirmance. Therefore, we will review the

grounds enumerated in the BIA’s decision and will examine the IJ’s decision

only as his findings support those grounds. We review the BIA’s and IJ’s factual

findings under the substantial evidence test; we thus accept such findings unless

the record “compels” reversal. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1287 (11th Cir. 2003). We review the BIA’s and IJ’s legal determinations de

novo. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).

We note that only Herrera’s claims for withholding of removal and relief

under the CAT are before this Court. The BIA determined that Herrera was

5
statutorily ineligible for asylum, and we lack jurisdiction to review this finding.

Mendoza, 327 F.3d at 1287. Although Herrera’s brief primarily addresses his

asylum claim, repeatedly referencing the “well-founded fear” standard rather

than the higher standard for withholding of removal, the same facts and

arguments apply to both claims; and we may properly review his withholding

claim.

Section 241 of the INA, 8 U.S.C. § 1231(b)(3)(A), entitles an alien to

withholding of removal if he can show that his life or freedom would be

threatened on return to his country on account of his race, religion, nationality,

membership in a particular social group, or political opinion. If the alien

establishes past persecution, future persecution is presumed unless DHS shows

that conditions within the country have changed or that relocation to another part

of the country would avoid the threat and is reasonable. 8 C.F.R. §

208.16(b)(1)(i).

An alien who has not shown past persecution may still be entitled to

withholding of removal if he can demonstrate that he “more likely than not”

would be persecuted or tortured upon his return to the country in question. Id. §

208.16(b)(2). An alien fails to meet this burden if the IJ finds that the alien

could avoid the threat by relocating within his country. Id.

6
Here, Herrera failed to meet his burden for withholding of removal under

the INA. The record does not compel reversal of the BIA’s finding that Herrera

did not suffer past persecution or establish the required probability of future

persecution upon his return to Colombia. Even assuming that Herrera’s

testimony about his encounters with FARC is credible and that he is a member of

a protected social group, a handful of incidents over a thirteen-year period does

not rise to the level of past persecution, especially where Herrera sustained no

physical harm in all but one of those incidents. See Zheng v. U.S. Att’y Gen.,

451 F.3d 1287, 1290-91 (11th Cir. 2006) (five-day detention did not compel

finding of persecution); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231

(11th Cir. 2005) (noting that persecution is an “extreme concept” and denying

finding of persecution where petitioner was repeatedly threatened and her

mailbox bombed).

The erratic nature of Herrera’s encounters with FARC also contradicts his

argument that it is more likely than not that he will be persecuted or tortured

upon his return. And, substantial evidence supports the IJ’s finding that Herrera

could avoid a future threat by relocating within Colombia. In fact, the record

shows that he had successfully avoided the FARC in the past by relocating,

7
albeit with some loss in income. Thus, Herrera failed to establish his eligibility

for withholding of removal under the INA.

For the reasons listed above, substantial evidence supports the BIA’s

denial of relief under the CAT, as Herrera failed to show that it is “more likely

than not” that he will be tortured in the country of removal. 8 C.F.R. §

208.16(c)(2).

We conclude that substantial evidence supports the BIA’s denial of

withholding of removal pursuant to the INA and the CAT. Accordingly,

Herrera’s petition for review is denied.

PETITION DENIED.